dissenting. Inasmuch as the majority reverses the judgment of the court of appeals on a theory neither raised by the parties nor considered by any court below and fails to address the issue squarely presented in this appeal, I must respectfully dissent.
*158The real issue presented to this court is whether an attorney is immune from liability to third persons while representing a client and acting within the authority granted by the client. I would affirm the judgment of the court below and hold that, under the circumstances of the case at bar, appellee is immune from liability in the suit brought by appellant. The following facts as set forth in the pleadings obliged this dissent.
Appellant alleged that appellee was contacted by one Ruth Petrey who hired appellee to collect back child support from William Petrey, Ruth Petrey’s ex-husband. Ruth Petrey provided appellee with what she believed to be William Petrey’s Social Security number, and informed appellee that William Petrey was supposedly working at the Ford Motor Co. Appellee proceeded to file a “motion to show cause” in the Domestic Relations Division of the Court of Common Pleas of Butler County against William Petrey, a.k.a. Chester Petrey, in an attempt to recover the back child support owed to Ruth Petrey. This motion was served on Chester Petrey at his residence which was also the residence of Levi Petrey, the appellant. Appelleé was contacted by an attorney representing Chester Petrey and was told that neither Chester Petrey nor Levi Petrey was the William a.k.a. Chester Petrey named in the motion. However, at the scheduled hearing on the motion, neither Chester nor Levi Petrey appeared, through counsel or otherwise, to establish that he was not the correct party.
At the hearing, appellee learned that Ford Motor Co. employed a Levi Petrey whose Social Security number differed only in one digit from the Social Security number believed to belong to Ruth Petrey’s ex-husband. Appellee then obtained an order of assignment of Levi Petrey’s wages in the amount of $135 per week believing that Levi Petrey was William Petrey, Ruth Petrey’s ex-husband. After procuring this wage assignment, appellee was contacted over the telephone by an attorney representing Levi Petrey and was told that Levi Petrey was not Ruth Petrey’s ex-husband. Appellee responded that, in order to drop the wage assignment, he would require evidence that Levi Petrey was not the correct party, including birth certificates, marriage certificates, and photographs. It was not until after Levi Petrey’s wages had been assigned for eleven weeks in the total amount of $1,485 that Levi Petrey established he was not Ruth Petrey’s ex-husband. Being satisfied that Levi Petrey was not the correct party, appellee voluntarily dissolved the wage assignment.
Levi Petrey instituted this action against appellee alleging abuse of process, malicious and wrongful attachment, invasion of privacy, and intentional infliction of emotional distress. In the trial court and court of appeals, appellee successfully argued that he was immune from liability for acts performed on behalf of his client, absent malice. I agree.
I propose that this case be decided upon an application of the general rule that an attorney is immune from liability to third persons arising from his performance as an attorney in good faith on behalf of, and with the knowledge of his client, unless such third person is in privity with the client *159or the attorney acts maliciously. See W.D.G., Inc. v. Mutual Mfg. & Supply Co. (Franklin App. 1976), 5 O.O.3d 397.
I believe the public policy behind this rule is sound and compelling. An attorney owes a primary duty to his client and must act accordingly. In a real sense, this principle is legally enforceable in light of the Code of Professional Responsibility. Specifically, EC 5-1 states:
“The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Neither his personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute his loyalty to his client.” (Emphasis added.)
Were the rule otherwise, an attorney would be faced with a sharp conflict of interest. On one hand, the attorney must have an interest in promoting and protecting the interests of his client. On the other hand, if no such immunity exists, an attorney may be reticent to advance the cause of his client out of fear of lawsuits by third persons arising out of the attorney’s representation of his client. This proposition was well stated in Petrou v. Hale (1979), 43 N.C. App. 655, 260 S.E. 2d 130, at 661:
“* * * pf an attorney whose primary duty is to promote the cause of his client in a light most favorable to him within the bounds of the law is also required to protect the rights of an adverse party, he will be caught in the midst of a conflict of interest. More importantly, if mere negligence in protecting the rights of an adverse party becomes the standard of liability, attorneys will be fearful of instituting lawsuits on behalf of their clients. The end result would be the limitation of free access to the courts.”4
Viewing the forestated facts in a light most favorable to appellant, I would find that the pleadings do not sufficiently allege malice or bad faith on the part of the appellee. Appellant’s complaint alleges only the prudent actions of a competent attorney representing his client within the bounds of the law. Until appellant appeared and established that he was not the correct party, for all appellee knew Levi Petrey was William Petrey given the unusual circumstances of this case. Moreover, it would appear that appellant expected appellee to dissolve the wage assignment solely upon the oral representation that Levi Petrey was not the correct party even though neither Chester nor Levi Petrey nor their attorney bothered attending the hearing on the motion to show cause after having been properly served with notice. Reasonable minds could not differ that appellee, given the facts known to him, was under no obligation to act any differently.
It is my view that, in light of the pleadings, no sufficient allegation of malice was raised by appellant which would warrant a trial of that factual issue.
*160I must also emphasize that this dissenting opinion should not be construed as disagreeing with the law as stated by the majority. Given the case where the issue addressed by the majority is properly and fairly presented, I will cast my vote accordingly. The issue which the majority should have addressed was not addressed. Accordingly, for the foregoing reasons, I would affirm the judgment of the court below.
W. Brown, J., dissents.See, generally, cases collected in Annotation, 27 A.L.R. 3d (1969) 1113, Sections 9-15; Annotation, 45 A.L.R. 3d (1972) 1181, Sections 3-4; Annotation, 97 A.L.R. 3d (1980) 688.